BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20160002934 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20160002934 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his discharge under other than honorable conditions (UOTHC). 2. The applicant states he was discharged for being absent without leave (AWOL) due to a domestic situation that was going on at the time. 3. The applicant provides: * letter from Dr. M____ W____, Tampa General Hospital, dated 6 August 2010 * letter from L____ V. S____, undated * letter from M____ A____ S____, dated 10 January 2016 * letter from J___ E____ S____ letter, dated 11 January 2016 * letter from A____ C____, Pure Water Systems, Incorporated, letter, dated 15 January 2016 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 3 May 1972 * DD Form 214 (Report of Separation from Active Duty) for the period ending 6 August 1974 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having prior enlisted service in the Regular Army, the applicant again enlisted in the Regular Army on 6 March 1973 in the rank/grade of specialist four (SP4)/E-4. 3. His DA Form 20 (Enlisted Qualification Record) shows in: a. item 33 (Appointments and Reductions), he was reduced in rank/grade from SP4/E-4 to private (PVT)/E-1 effective 2 August 1974 by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Special Orders Number 214, dated 1974 (these orders are not available for review); b. item 38 (Record of Assignments), he served in Vietnam during the period 24 December 1970 to on or about 1 December 1971; and c. item 44 (Time Lost under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration of Term of Service), he had lost time due to being AWOL during the following periods: * 14 June 1974 to 18 June 1974 * 3 July 1974 to 14 July 1974 * 15 July 1974 to 23 July 1974 4. A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), undated, shows he was dropped from the unit rolls on 4 July 1974 and he surrendered to military authorities on 24 July 1974. 5. His discharge package and the facts and circumstances surrounding his discharge are not available for review. 6. Headquarters, U.S. Army Field Artillery Center and Fort Sill, Special Orders Number 217, dated 5 August 1974, directed his discharge under the provisions of Army Regulation 625-200 (Personnel Separations – Enlisted Personnel), chapter 10, by reason of conduct triable by court-martial effective 6 August 1974. These orders show his rank as private/E-1. 7. His DD Form 214 shows he was discharged effective 6 August 1974 under the provisions of Army Regulation 625-200, chapter 10. He completed 1 year, 3 months, and 23 days of net active service during this period and he accrued 39 days of lost time. His service was characterized as UOTHC. 8. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 9. He provided a letter from Dr. M____ W____, Tampa General Hospital, dated 6 August 2010, stating he was awaiting heart transplantation. During his heart transplant evaluation, he was found to have strongyloides (human pathogenic parasitic roundworm, commonly known as a threadworm). The infectious disease specialists feel the applicant was likely exposed to strongyloides while serving in Vietnam. 10. He also provided four letters in support of his request for a discharge upgrade. a. A letter from L____ V. S____, his sister, undated, states he joined the Army when he was 17 years old and he served in Vietnam as a door gunner on a Huey helicopter. When he returned from Vietnam, there was no acknowledgement of post-traumatic stress disorder (PTSD) or treatment as there is now. Her brother continued with his military service and even reenlisted. His first wife did whatever she could to destroy his love for the Army and his career. The stress and his situation with mental problems finally caused him to break and he was eventually put out of the Army. With all this happening, in anger, he threw his medals away. While in Vietnam and unknown to him, he had parasites travel through the soles of his feet to his lungs and heart and over the years he has suffered heart problems, heart attacks, and finally almost death before receiving a heart transplant. He has regretted his actions and he now desires an honorable discharge and his medals. b. A letter from M____ A____ S____, dated 10 January 2016, states she has known the applicant for years and he has consistently proven himself to be a loyal and dedicated individual in his personal life, a leader, and a teacher to his grandchildren. She stated he was exposed to Agent Orange in Vietnam, he has PTSD, and he contracted a parasite that existed for 40 years and destroyed his heart. He had numerous heart attacks and a pacemaker implanted. In 2011, he received a new heart. She stated it was unfortunate that he had to give his health to fight in Vietnam and he deserves to be an honorably discharged Army veteran because he went into the service healthy and came out deathly ill after having fought for his country. c. A letter from J___ E___ S____, dated 11 January 2016, states he has known the applicant for approximately 15 years and in that time he has shown himself to be the pillar of his family. He states the applicant fought in Vietnam where he contracted a parasite that destroyed his heart and damaged his transplanted heart. He believes it is unconscionable to label a man who is loyal to his country, family, community, and his friend as dishonorable and granting him an honorable discharge is the right thing to do. d. A letter from A____ C____, Pure Water Systems, Incorporated, dated 15 January 2016, states she and her husband have known the applicant and his current wife since 2000. The applicant explained that his second discharge was less than honorable because his ex-wife was unfaithful and caused a lot of problems on base. She also stated the applicant wants his discharge upgraded so his grandchildren will be proud of him and history will show him in good standing. 11. On 8 September 2017, the Army Review Boards Agency Case Management Division contacted the applicant in writing and requested medical documentation supporting his claim of PTSD. He was given 30 days to provide the requested documentation. He did not respond. 12. On 2 February 2018, an Army Review Boards Agency Clinical Psychologist provided an advisory opinion wherein she opined it is likely the applicant's behavioral health condition attributed to the misconduct that led to his separation from the active duty. She further stated: a. Department of Veterans Affairs medical records indicate the applicant has diagnoses of PTSD, bipolar disorder, stage 4 kidney disease, and heart disease. b. The applicant may have experienced the effects of undiagnosed PTSD following his return from Vietnam. His deployment experiences appear to have negatively impacted his motivation to continue serving in the military and can be associated with poor judgement, impulsivity, and avoidant behaviors, such as being AWOL. c. Given that PTSD was not recognized as a diagnosis during the applicant's time in service, it is unlikely that he or anyone else recognized and attributed his repeated AWOL status to the effects of his deployment experiences. REFERENCES: 1. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association and provides standard criteria and common language for classification of mental disorders. a. In 1980, the American Psychiatric Association added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." b. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 2. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharges. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 3. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. 4. Although DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the records that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. BCM/NRs will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 5. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade d. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 8. Service medals and awards are not issued by the ABCMR. However, the applicant may obtain his medals by submitting a request in writing to: National Personnel Records Center, 1 Archives Drive, St. Louis, MO 63138. DISCUSSION: 1. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 2. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The type of discharge directed and the reasons for separation were appropriate considering the available facts at the time. Absent the discharge UOTHC, there was no regulatory basis for his reduction in rank/grade to private/E-1. 3. At the time of his discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. 4. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. This Board is to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on mental health conditions, including PTSD. 5. The Army Review Boards Agency Clinical Psychologist opined a causal nexus between the applicant's behavioral health diagnoses and his misconduct existed. This nexus may serve as a basis for granting relief. BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20160002934 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as under honorable conditions (general) and his rank/grade as specialist four/E-4 with a date of rank of 17 August 1970. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160002934 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002934 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2